54. In paragraph 14 we stressed that one of the essential criteria of any effective legislative scrutiny system was a proper method of monitoring legislation which has come into force. Post-legislative monitoring has the particular advantage that it draws on Members' constituency work, where unexpected problems often surface first. To facilitate and encourage such monitoring, a system of reporting on the outcome of all legislation, rather than some of it as at present, could be established. It is also in this area that the departmentally-related Select Committees can really play a major part, not least because there would be far greater flexibility over the timing of such monitoring than would be possible during the actual stages of legislation.

  55. In the last Parliament several such exercises were in fact carried out[31]. It would be possible to extend such activity further by specifically instructing the Committees in an amendment to their terms of reference to carry out such monitoring on a systematic basis. Alternatively, as an initial step, they could simply be encouraged to undertake such monitoring. Inevitably the workload would not be spread evenly among the Committees, and some would be faced with far more work of this sort than others. Eventually this might need to be reflected in the size and composition of the Committees, the frequency of their meetings, the possibility of the use of sub-committees and the number of staff available to serve them. The House could of course also appoint an ad hoc Select Committee, if that were thought more appropriate, where a particular piece of legislation causing exceptional concern affected more than one Department.

  56. However much the House may improve its methods of scrutinising legislation before it comes into force, it is inevitable that there will almost always be unforeseen circumstances which may affect or even nullify the operation of a particular law. The House must be capable of dealing with such eventualities in a systematic way. We propose to give further consideration in a subsequent Report to this issue, and to look at practical ways of tackling the problem.

PROGRAMMING OF LEGISLATION

  57. None of the possible changes in use of the various options available at each stage of the legislative process can be considered in isolation from the legislative timetable. The failure to address this issue fair and square has nullified much previous efforts at reform. It is a potentially emotive and contentious issue. The House of Commons is by its nature the place for the clash of opposing views, where party political feelings can run high. It is not an academic debating society. Any attempts to reform the House's legislative procedures and practices which fail to recognise the political realities is doomed to failure. It is against this background that we turn to the question of the programming of legislation.

  58. In paragraph 14 we set out the essential criteria for an effective legislative process. The first three of these relate directly to the programming of legislation-

"  (a)  The Government of the day must be assured of getting its legislation through in reasonable time (provided that it obtains the approval of the House).


(b)  The Opposition in particular and Members in general must have a full opportunity to discuss and seek to change provisions to which they attach importance.


(c)  All parts of a Bill must be properly considered."

THE SESSIONAL CYCLE

  67. Closely linked with any possible changes in the way in which legislation is considered and with the programming of such legislation is the sessional cycle which at present governs all proceedings in Parliament. The session is the ultimate timetable, since prorogation imposes an absolute deadline for a Bill's passage through both Houses. To quote Erskine May "The effect of a prorogation is at once to suspend all business until Parliament shall be summoned again....... Every bill must therefore be renewed after a prorogation, as if it were introduced for the first time". A footnote to the same passage goes on to instance various attempts to modify this, but concludes that "various considerations have restrained the legislature from disturbing the law and custom of Parliament by which parliamentary proceedings are discontinued by prorogation"[32].

  68. We have already noted in paragraphs 11 and 12 the problems caused by the sessional cut-off and in paragraph 14 we have stressed the importance of spreading legislation evenly throughout the session, a process which is self-evidently impossible with an invariable sessional cut-off. It is worth noting that the last attempt to consider provisions for the carryover or revival of public Bills was made by a Joint Committee on Suspension of Bills in Session 1928-29, which reported "the general though not unanimous view that an experiment might be made in a proper case by carrying over a particular Bill"[33]. Successive Procedure Committees have considered the idea, without concrete outcome. It is also worth noting that provisions are regularly made to "carry over" not only private Bills, but also hybrid Bills, many of which are of great public concern.

  69. There are perceived advantages and disadvantages for both Government and Opposition in the carry-over of legislation. The Government can use the run-up to the end of the parliamentary session to curtail debate on legislation, particularly where there is some public sympathy for the overall objectives of the bill. The Opposition, in the run-up to the end of the parliamentary session, sometimes believes that it can obtain concessions from Government not normally available, because of the requirement to complete the legislative programme by prorogation. Either way, this does not provide the best scrutiny of legislation. In appropriate cases carry-over could be used as a positive means of improving the quality of legislation.

  70. Any changes proposed in this area of the legislative process must clearly contain stringent safeguards to prevent misuse. We do not seek lightly to disregard the constitutional implications of prorogation, and carry-over must be regarded as the exception rather than the rule. It is also not an area in which the House of Commons can act alone since it clearly has implications for and directly affects the House of Lords. In the concluding section of our Report, we make some detailed recommendations as to how carry-over could operate with appropriate safeguards.

OTHER LEGISLATIVE ISSUES.

  71. There are various other types of legislation which must be mentioned briefly, on which we propose no action in this Report. We will return to these issues in due course.

The Finance Bill

  72. The annual Finance Bill is unique in several respects. It already has a built-in statutory timetable under the Provisional Collection of Taxes Act. Budget resolutions coming into immediate effect provisionally under Section 5 have to be passed within ten sitting days if their validity is to continue. Their statutory effect ceases if the Bill founded on them (i.e. the Finance Bill) is not given a Second Reading within thirty sitting days from the date they are passed. The Bill must become an Act within four months from the date when the resolutions are to take effect; if it does not the resolutions are no longer valid. In addition to this timetable, as already indicated, the Bill is now regularly split for Committee stage between Committee of the Whole House and a Standing Committee.

  73. Various proposals have been made in the past for reforms of the House's financial procedures, including suggestions for splitting the Finance Bill into two, one Bill dealing with the actual tax changes pure and simple, the other with the highly technical provisions which form the bulk of the Bill. The two Bills could be subject to very different processes of scrutiny. We intend to return at a later stage to the question of the House's financial procedures, including the treatment of the Finance Bill, but this is a major issue requiring considerable study. At this stage, therefore, we propose to exclude the Finance Bill from the changes we recommend for other Bills.

Constitutional bills

  74. The Government memorandum refers to the long standing convention of the House that bills of first class constitutional importance should have all their stages on the floor of the House. It goes on-

"The Government does not have a settled view on this, but can see a case for a more flexible approach where, overall, a bill would be better scrutinized if parts of it were considered by a standing committee"[34].

  75. The phrase "first class constitutional importance" derives from a memorandum submitted by the Labour Government in 1945 to the Procedure Committee, which proposed that, with some exceptions including "Bills of first class constitutional importance", Bills should be committed to a Standing Committee. The Procedure Committee accepted the Government proposals and the House did likewise. No attempt was made, however, to define what was meant by the phrase; the only examples used in the Government memorandum were the Parliament Act 1911 and the Statute of Westminster 1931. Nor has there been any accepted definition of the phrase since then; indeed in 1981 Mr Speaker Thomas specifically stated "The rules of the House contain no definition of what is, or what is not, a constitutional Bill, nor do they lay down any special procedures for the Chair to enforce in relation to such Bills"[35].

  76. The examples quoted in the 1945 memorandum give a clear indication of what constitutes a first class constitutional bill. In the past half-century, a number of bills which would have changed the role and composition of Parliament have been so regarded. There is clearly some room for disagreement in some individual cases; in other cases there will be no dispute as to the categorisation to be applied.

  77. Whilst a first-class constitutional bill is technically no different from any other bill, we recognise that there are at least two firmly held and contrary views on how such bills would be treated.

  78. The established view is that there is a strong case for treating first class constitutional bills differently from other bills, and that they should continue to be discussed on the floor of the House, in accordance with the 1945 decision of the House. Only in that way do the proponents of this view believe that all Members can participate in detailed consideration of legislative proposals which affect matters such as the powers of Parliament itself.

  79. The other strongly held view is that, while all matters of constitutional principle should be determined by the whole House, the detailed and technical issues are much better dealt with in a comparatively small forum such as a committee upstairs. To those advocating this view the principle of flexibility to be applied to other bills applies with equal force to constitutional measures. Consideration of such bills should meet the criteria set out in paragraph 14, and in particular subsection (b).

  80. Whilst we see no reason why a programme for the passage of such a bill could not be agreed, if agreement were impossible, the Government of the day would presumably feel obliged to fall back upon a traditional timetable motion.

Consolidation, Law Commission and Tax Simplification bills

  81. Specific Standing Orders (Nos. 58, 59 and 60) describe the procedure which is to be followed for these three types of Bills[36]. The thinking behind these provisions is that these are particular types of largely uncontroversial legislation which have already been subject to expert scrutiny. We do not recommend any specific changes in procedure for such Bills. We have received a memorandum from the Law Commission[37], and many of its submissions would be met by the general changes we are proposing, such as the carry-over of Law Commission Bills for a specified period.

Private Members' bills

  82. Opportunities for backbenchers to initiate both debates and legislation are an essential element of the Parliamentary timetable, and it is one to which we will return. In this initial Report, however, we have confined ourselves to proposals for Government Bills only, not least because those Members successful in the ballot will have decided what Bills to present on the basis that the present procedures will continue.

European legislation and UK delegated legislation

  83. Although this Report is concerned solely with United Kingdom primary legislation, we fully recognise the importance of the other types of legislation. No examination nor reform of the legislative process would be complete if it were confined solely to United Kingdom primary legislation. Of crucial and growing importance is the need to ensure proper scrutiny of the other forms of legislation with which the House has to deal, namely European legislation and United Kingdom secondary legislation. Both have however been the subject of recent and comprehensive Reports from both the Procedure Committee and the European Legislation Committee[38]. It is our understanding that the Government is to make an interim response on these matters. In these circumstances we propose to await this response. In the light of the response and any changes which are made as a result we will return to these issues in a subsequent Report later in the session.